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Friday, August 30, 2013

OK, I don't usualy pick eight-year-old cases for Case of the Week - but I had to pass along this case straight from the "how have I not heard of this before" file. Apparently, in 2005, two employees who worked with Koko the sign language gorilla filed a discrimination and harassment lawsuit.

"On at least two incidents in mid-to-late June 2004, Patterson intensely pressured Keller to expose herself to Koko while they were working outside where other employees could potentially view Keller's naked body. ... On one such occasion, Patterson said, 'Koko, you see my nipples all the time. You are probably bored with my nipples. You need to see new nipples. I will turn my back so Kendra can show you her nipples.'" . . . . The suit, in any case, says that Patterson would interpret hand movements by Koko as a demand to see exposed human nipples. She warned Alperin and Keller that their employment with the foundation would suffer, the suit says, if they "did not indulge Koko's nipple fetish."

Friday, August 23, 2013

This installment of Case of the Week features a teacher who was fired for having sex in school. The incidents invovled a co-worker (not students) and no students were present. I guess that makes it a little better, but still a terminable offense, right?

Not so fast. The sexcapades came to light in the course of an investigation into the co-worker striking, stalking, and sexually harassing the teacher. The school district's solicitor needed the teacher's testimony at an arbitration hearing against the co-worker.

At Co-worker’s arbitration hearing on March 8, 2005, upon learning that District intended to raise this issue during [the teacher's] testimony, [the teacher's] attorney questioned District solicitor, “But what about [the teacher]?” District’s solicitors responded, “[h]ow many times have I got to tell you? I’m not interested in [the teacher].” Moreover, District’s solicitors had already told [the teacher's] attorney at the meeting on March 4, 2005 that this “wasn’t a proceeding that was going to involve filing charges against [the teacher].”

Do you see where this is going?

Applying contract principles, the Pennsylvania Commonwealth Court held that the solicitor entered into an "implied agreement" for immunity in exchange for the teacher's testimony. Therefore, the Commonwealth Court reversed an earlier decision upholding the teacher's termination.

Thursday, August 22, 2013

My home circuit, the Third Circuit, issued an FLSA opinion this week in Bell v. SEPTA (opinion here). Bus drivers and other vehicle operators claimed that they were not paid for pre-trip activities such as reading bulletins, checking detours, and performing vehicle inspections (and, as they worked 40 hours per week on top of these activities, all of that time was unpaid overtime). The district court dismissed the FLSA claims, holding that the claims were subject to collective bargaining agreement (CBA) grievance procedures.

On appeal, the Third Circuit noted that the FLSA claims existed independently of the CBA. The workers did not seek interpretation of the CBA, but merely payment for time spent working as required by the FLSA. The Third Circuit contrasted this with prior precedent holding:

[I]f a FLSA claim depends on the disputed
interpretation of a CBA provision, an employee must first go
to arbitration—through the representative union—before
vindicating his or her rights in federal court under the FLSA.

The Court vacated the dismissal of the FLSA claims and sent them back to the district court where they can proceed without exhausting the CBA's grievance arbitration procedure.

Image: Third Circuit logo used in commentary on Third Circuit. Not official use.

Tuesday, August 20, 2013

Hey hiring managers, have you ever thought to yourself, "these applicants are okay . . . but I wish they were hotter"? Well, I have great news for you! This website will actually help you recruit "beautiful" employees, because as we all know:

An attractive face is always a great first impression for any business.

In fact, that's their actual tagline.

But, be careful - there are a lot of weirdos on the Internet. So, the company includes a disclaimer:

BeautifulPeople has initiated a cursory screening of businesses and individuals who have posted submissions. We strongly advise that you thoroughly research the company/individual before submitting an application.

While this post has largely been a joke - as far as I can tell, the Beautiful People website is 100% serious.

Are there legal risks? Sure - off the top of my head: the objectification of the "beautiful" recruits could lead to harassment; I'm guessing (without researching this at all) that the site trends toward certain protected classes (potential disparate impact claims), and some employers might only demand "beautiful" employees of a certain gender (disparate treatment).

In January, Senior U.S. District Judge William T. Moore Jr. denied without explanation a motion to postpone discovery in the race discrimination and sex harassment case brought against Deen and her brother by one of their restaurant managers. That motion to stay discovery—which, if granted, would have postponed the deposition in which Deen admitted using a racial epithet—was made by lawyers representing both the defendants and the plaintiff.

This strikes me as odd - discovery, and in particular depositions, can be extraordinarily expensive. Think about all the time the parties, their attorneys, and a paid reporter spent in depositions addressing claims that were dismissed at the pleading stage (of course, the primary cost for Paula Deen came from the content of her testimony).

Had the deposition taken place after the race discrimination claims were dismissed, the racially charged questions probably would have been off the table . . . . contrary to the quote in the linked article from an attorney:

It's probably a permissible question in a deposition . . . . You are trying to determine the atmosphere. If you use the N word, you probably have greasy paws on women.

Sorry. Not buying it. I invite my readers to weigh in by dropping a comment. But seriously, did anybody read Paula Deen's "n-word" testimony and think, "yeah, she probably has her 'greasy paws' on women"? I'm guessing no.

Spouse means a husband or wife as defined or recognized under state law for purposes of marriage in the state where the employee resides, including “common law” marriage and same-sex marriage.

This is hardly surprising given that the FMLA regulations already defined spouse as:

[A] husband or wife as defined or recognized under State law for purposes of marriage in the State where the employee resides, including common law marriage in States where it is recognized. 29 C.F.R. 825.102.

Of course, before the Supreme Court's ruling in U.S. v. Windsor, DOMA limited this to only opposite-sex marriages. After Windsor, the regulation presumably encompassed same-sex marriages as well. The DOL guidance merely affirms what we thought we already knew.

Tuesday, August 13, 2013

The plaintiff in the Paula Deen lawsuit claimed race discrimination and harassment based on allegations that Afircan-American employees had to use a back door, couldn't use customer restrooms (which white employees could use), and Defendant Hiers made racist jokes and used the n-word. In the end, the plaintiff was too white to win. No, seriously - she lost because she is white.

In this case, the Court concludes that Plaintiff is not an aggrieved party under Title VII because her interests are not those arguably sought to be protected by that statute. At best, Plaintiff is an accidental victim of the alleged racial discrimination. There are no allegations that Defendant Hiers's racially offensive comments were either directed toward Plaintiff or made with the intent to harass her.

Plaintiff's two bi-racial nieces and a single comment that her Sicilian father looked like a "n*****" were not enough to save her claims.

Now, to be clear, Title VII certainly protects white people - but this judge concluded that it does not protect them from race discrimination against African-Americans. In theory, had she opposed the race discrimination, she may have been able to raise a retaliation claim.

The Court dismissed the race discrimination claims, but reserved ruling on the other claims, including sexual harassment. Of course, the damage is already done for Paula Deen after her disastrous deposition. Am I the only one wondering why Paula Deen was deposed before the motion to dismiss was resolved? If you have an explanation, drop a comment.

Friday, August 9, 2013

About two years ago, the Supreme Court issued its opinion in Wal-Mart v. Dukes, a class action discrimination case on behalf of about 1.5 million female employees. The Court held that the class could not properly be certified because the claims lacked commonality:

The only corporate policy that the plaintiffs’ evidence
convincingly establishes is Wal-Mart’s “policy” of allowing
discretion by local supervisors over employment matters.
On its face, of course, that is just the opposite of a uniform
employment practice that would provide the commonality
needed for a class action; it is a policy against having
uniform employment practices.

Whatever happened to the class action? Well, they scaled it down to about 150,000 members and tried again. Unfortunately for them, and contrary to popular belief, the problem was never the size of the class. In a recent ruling from the Northern District of California:

Two themes emerge in
the analysis that follows. First, though they have cut down the raw number of proposed class
members significantly, Plaintiffs continue to challenge four different kinds of decisions
across hundreds of decision makers, inviting failures of proof at multiple points in each
region. Second, though Plaintiffs insist that they have presented an entirely different case
from the one the Supreme Court rejected, in fact it is essentially a scaled-down version of the
same case with new labels on old arguments.

The Court therefore denied the motion for class certification. We'll see whether they go back to the drawing board or appeal the ruling.

One note of interest: the judge in this case is Justice Breyer's brother, Judge Charles Breyer. If this case comes back to the Supreme Court, this could lead to recusal of a likely plaintiff-side vote.

Tuesday, August 6, 2013

It's that time of year again . . . Blawg 100 nominations are open! Every year, the ABA Journal produces a list of the top 100 legal blogs, called the "Blawg 100." I think we can all agree that last year's list was by far the best list ever - and I am not just saying that because it was the first year Lawffice Space made the cut.

Let's cut to the chase - you (yes you!) can help ensure that Lawffice Space makes the 2013 list. Simply go here and tell them why Lawffice Space is awesome. I notice that they're looking for feedback about Twitter accounts too . . . perhaps something new and Twitter-related in the works? We'll see. Incidentally, I am on Twitter @PhilipMiles.

Monday, August 5, 2013

A Monday Case of the Week!? Yeah, I spoke at an employment law seminar for the folks at Healthcare Human Resources Association in Altoona, PA on Friday. So, the Case of the Week was delayed until today.

The case provides a great illustration of how complicated things can get in this post-Windsor world. The case involved a woman who participated in a Pennsylvania law firm's plan that provided for a survivorship annuity to her beneficiary upon her death. Sadly, she passed away. The issue was whether she has a "spouse," who would be the default beneficiary (if not, the survivor benefits go to her parents). Whether ERISA recognized her same-sex partner as her spouse should give us our winner.

Well, you say, Pennsylvania does not recognize same-sex marriages so the parents must win, right? Not so fast! She was married to a woman in Canada, which does recognize the marriage. But wait, Pennsylvania does not have to recognize that marriage. Well sure, but she and her wife were domiciled in Illinois, so we should look to their laws (at this point, the seminar attendees and I had a good chuckle - Pennsylvania employers deciding beneficiaries based on whether Illinois recognizes Canadian same-sex marriages . . . it's all so simple, right?). Just when you think it can't get any more convoluted, we get one more curve ball: Illinois recognizes the Canadian same sex marriage as a "civil union."

Frankly, the Court's legal analysis was a little thin, dispatching this case in a mere 12 pages. Suffice it to say that the Court concluded the same-sex partner was a spouse under ERISA based on Illinois' recognition of the marriage. DOMA defined "spouse" for over 1,000 federa

l statutes - so expect a lot more cases like this as we wade through these issues.

Directories and Profiles

Lawffice Space - Pennsylvania and Federal Labor & Employment Law Blog

Produced by Philip Miles, an attorney with McQuaide Blasko in State College, Pennsylvania. McQuaide Blasko also has offices in Hershey and Hollidaysburg. Mr. Miles works in the firms's Litigation and Labor & Employment Law practice groups, providing legal services to employers and employees relating to human resources, employment discrimination, and other employment law issues.